3. For the adequate implementation of this Chapter, the Parties shall strengthen bilateral contact and cooperation between their respective sanitary and phytosanitary agencies.
Chapter 7. TECHNICAL BARRIERS TO TRADE
Article 93. Objectives
The objectives of this Chapter are to increase and facilitate trade between the Parties, through the improvement of the implementation of the WTO Agreement on Technical Barriers to Trade (hereinafter referred to as “TBT Agreement”); the assurance that standards, technical regulations, and conformity assessment procedures, do not create unnecessary obstacles to trade; and the enhancement of bilateral cooperation between the Parties.
Article 94. Affirmation of the TBT Agreement
The Parties affirm their existing rights and obligations with respect to each other under the TBT Agreement.
Article 95. Scope
1. The provisions of this Chapter apply to the preparation, adoption and application of all standards, technical regulations and conformity assessment procedures, of central and local government bodies, that may affect directly or indirectly the trade in goods between the Parties.
2. This Chapter does not apply to:
(a) purchasing specifications prepared by governmental bodies for production or
consumption requirements of such bodies; and
(b) sanitary and phytosanitary measures as defined in Annex A of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures, which are covered by Chapter 6 (Sanitary and Phytosanitary Measures) of this Agreement.
Article 96. International Standards
1. Each Party shall use relevant international standards, guides and recommendations to the extent provided in Articles 2.4 and 5.4 of the TBT Agreement, as a basis for its technical regulations and conformity assessment procedures.
2. In determining whether an international standard, guide, or recommendation within the meaning of Articles 2 and 5 and Annex 3 of the TBT Agreement exists, each Party shall apply the principles set out in Decisions and Recommendations adopted by the Committee since 1 January 1995, G/TBT/1/Rev.8, 23rd May 2002, Section IX (Decision of the Committee on Principles for the Development of International Standards, Guides and Recommendations with relation to Articles 2, 5 and Annex 3 of the Agreement), issued by the WTO Committee on Technical Barriers to Trade (TBT Committee).
3. Each Party shall encourage its national standardizing bodies to cooperate with the relevant national standardizing bodies of the other Party in international standardizing activities. Such cooperation may take place through the Parties’ activities in regional and international standardizing bodies of which they are both members.
Article 97. Technical Regulations
1. Each Party shall give positive consideration to accepting as equivalent technical regulations of the other Party, even if these regulations differ from its own, provided it is satisfied that these regulations adequately fulfil the objectives of its own regulations.
2. Where a Party does not accept a technical regulation of the other Party as equivalent to its own, it shall, at the request of the other Party, explain its decision.
3. At the request of a Party that has an interest in developing a similar technical regulation, the Parties may conduct relevant communication to provide, to the extent practicable, information, studies, or other documents, except for confidential information, on which it has relied in the development of a technical regulation.
Article 98. Conformity Assessment
1. The Parties recognize that a broad range of mechanisms exists to facilitate the acceptance in a Party’s territory of the results of conformity assessment procedures conducted in the other Party’s territory. The Parties shall exchange information on the range of mechanisms used in their territories.
2. Before accepting the results of a conformity assessment procedure, and to enhance confidence in the continued reliability of each other’s conformity assessment results, the Parties may consult on such matters as the technical confidence of the conformity assessment bodies involved.
3. A Party shall, on the request of the other Party, explain its reasons for not accepting the results of a conformity assessment procedure performed in the other Party’s territory.
4. Each Party shall accredit or otherwise recognize conformity assessment bodies in the territory of the other Party on terms no less favourable than those it accords to conformity assessment bodies in its territory. If a Party accredits, or otherwise recognizes a body assessing conformity with a particular technical regulation or standard and it refuses to accredit or otherwise recognizes a body of the other Party assessing conformity with that technical regulation or standard, it shall, on request, explain the reasons for its refusal.
5. Where a Party declines a request from the other Party to engage in or conclude negotiations to reach agreement on facilitating recognition in its territory of the results of conformity assessment procedures conducted by bodies located in the other Party’s territory, it shall, on request, explain its reasons.
6. The Parties shall ensure that, in cases where a compulsory conformity assessment procedure is required, one Party applies the following provisions to products originating in the territory of the other Party:
(a) the standard processing period of each compulsory conformity assessment procedure is published or the anticipated processing period is communicated to the applicant upon request; and
(b) at request of a Party, the other Party shall provide the list of products, in a specific sector, which are subject to compulsory conformity assessment procedures, in a term of 30 working days. The list of products shall be made in English with its HS code, in six or more digits.
Article 99. Transparency
1. Each Party shall notify electronically to the other Party´s enquiry point, established under Article 10 of the TBT Agreement, at the same time it submits its notification to the WTO Secretariat in accordance with the TBT Agreement:
(a) its proposed technical regulations and conformity assessment procedures; and
(b) its technical regulations and conformity assessment procedures adopted to address urgent problems of safety, health, environmental protection or national security arising or threatening to arise. The notifications shall include an electronic link to, or a copy of, the full text of the notified document.
2. Further to subparagraph 1(a), each Party shall allow a period of at least 60 days following notification of proposed technical regulations and conformity assessment procedures for the public and the other Party to provide written comments. A Party shall give positive consideration to a reasonable request for extending the comment period.
3. A Party shall give favourable consideration to the comments from the other Party and, if the comments are not accepted, the Party shall explain the reasons in a timely fashion.
4. Each Party shall, on request of the other Party, provide information regarding the objectives of, and rationale for, a technical regulation, or conformity assessment procedure that the Party has adopted or is proposing to adopt.
5. A Party shall give positive consideration to a reasonable request from the other Party, received prior to the end of the comments period following the notification of a proposed technical regulation, to extend the period of time between the adoption of the technical regulation and its entry into force.
6. Where a Party detains at a port of entry a good imported from the territory of the other Party due to a perceived failure to comply with a technical regulation, it shall immediately notify the importer of the reasons for the detention of the good.
7. The Parties shall ensure that all adopted technical regulations and conformity assessment procedures are available on an official website that is publicly available.
8. The Parties agree to further strengthen cooperation between TBT Enquiry Points of the Parties, including sharing available translated versions of TBT notifications and relevant information, and exchanging experience and information on TBT notifications.
Article 100. Technical Cooperation
1. The Parties agree to cooperate in the field of standards, technical regulations, and conformity assessment procedures with a view to facilitating access to each other’s markets. In particular, the Parties shall consider the following activities, inter alia:
(a) encouraging the enforcement of this Chapter;
(b) strengthening the capacity of their corresponding standardisation, technical regulation, conformity assessment and metrology bodies;
(c) increasing the participation and collaboration in the international organizations with activity in areas such as standards, conformity assessment and metrology;
and
(d) increasing the human resources development and training as required by this Chapter.
Article 101. Committee on Technical Barriers to Trade
1. The Parties hereby establish the Committee on Technical Barriers to Trade, comprising representatives of each Party.
2. For purposes of this Article, the Committee shall be coordinated by:
(a) for China, the Department of International Cooperation of the General Administration of Quality Supervision, Inspection and Quarantine, or its successor; and
(b) for Peru, the Vice Ministry of Foreign Trade of the Ministry of Foreign Trade and Tourism, or its successor. The Parties agree to designate contact points at the first meeting of the Committee on Technical Barriers to Trade established under this Chapter.
3. The Committee’s functions shall include:
(a) monitoring the implementation and administration of this Chapter;
(b) reviewing this Chapter in light of any developments under the TBT Committee, and if necessary developing recommendations for attachments to this Chapter;
(c) discussing any issue that a Party raises related to the development, adoption or application of standards, technical regulations, conformity assessment procedures and other TBT issues under this Chapter; including:
(i) establishing, if necessary to achieve the objectives of this Chapter, issues or sectors-specific ad hoc working groups; and
(ii) taking any other steps the Parties may consider that will assist them in implementing this Chapter and the TBT Agreement and in facilitating trade;
(d) exchanging information on standardization, technical regulations, and conformity assessment procedures, including, when appropriate, information of activities in other fora;
(e) promoting and facilitating cooperation in the areas of standards, technical regulations and conformity assessment procedures, including metrology;
(f) at a Party’s written request, holding technical consultation on any matter arising under this Chapter; and
(g) as it considers appropriate, reporting to the Free Trade Commission on the implementation of this Chapter.
4. Notwithstanding subparagraph 3(f), any Party may directly resort to the dispute settlement mechanism provided in Chapter 15 (Dispute Settlement).
5. The institutions set out in paragraph 2 will be responsible for coordinating with the relevant institutions and persons in their territory as well as ensuring that such institutions and persons are engaged. They will elaborate their own work rules and shall meet at least every 2 years unless the Parties otherwise agree. The Committee shall carry out their work through the communication channels agreed to by the Parties, which may include electronic mail, teleconferencing, videoconferencing, or other means.
Article 102. Information Exchange
Any information or explanation requested by a Party pursuant to the provisions of this Chapter shall be provided by the other Party, in print or electronically, within a reasonable period of time agreed between the Parties and, if possible, in a term of 60 days.
Article 103. Definitions
For purposes of this Chapter, the terms and definitions of Annex 1 of the TBT Agreement shall apply.
Chapter 8. Trade In Services
Article 104. Definitions
For purposes of this Chapter:
trade in services means the supply of a service:
(a) from the territory of a Party into the territory of the other Party;
(b) in the territory of a Party by a person of that Party to a person of the other Party;
(c) by a service supplier of a Party, through commercial presence in the territory of the other Party; or
(d) by a service supplier through presence of natural persons of a Party in the territory of the other Party; juridical person means an entity constituted or organized under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, including a corporation, trust, partnerhsip, sole proprietorship, joint venture or association; juridical person is:
(i) "owned" by persons of a Party if more than 50% of the equity in it is beneficially owned by persons of that Party;
(ii) "controlled" by persons of a Party if such persons have the power to name a majority of its directors or otherwise to legally direct its actions;
service supplier of a Party means any person of that Party that supplies a service; (3)
measure means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
supply of a service includes the production, distribution, marketing, sale and delivery of a service; commercial presence means any type of business or professional establishment, including through:
(i) the constitution, acquisition or maintenance of a juridical person; or
(ii) the creation or maintenance of a branch or a representative office, within the territory of a Party for the purpose of supplying a service; and natural person of a Party means a natural person who resides in the territory of a Party, and who under the law of that Party is a national of that Party.
Article 105. Scope and Coverage
1. This Chapter applies to measures adopted or maintained by a Party affecting trade in services by service suppliers of the other Party. Such measures include measures affecting:
(i) the purchase or use of, or payment for, a service;
(ii) the access to and use of, in connection with the supply of a service, services which are required by the Parties to be offered to the public generally; or
(iii) the presence, including commercial presence, of persons of a Party for the supply of a service in the territory of the other Party.
2. For purposes of this Chapter, measures adopted or maintained by a Party means measures adopted or maintained by:
(i) central, regional or local governments and authorities; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities.
3. This Chapter does not apply to:
(a) government procurement;
(b) air services, (4) including domestic and international air transportation services, whether scheduled or non-scheduled, and related services in support of air services, other than:
(i) aircraft repair and maintenance services;
(ii) the selling and marketing of air transport services; and
(iii) computer reservation system (CRS) services; and
(c) subsidies or grants provided by a Party, including government-supported loans, guarantees, and insurance.
4. This Chapter does not impose any obligation on a Party with respect to a natural person of the other Party seeking access to its employment market, or employed on a permanent basis in its territory, and does not confer any right on that natural person with respect to that access or employment.
5. This Chapter does not apply to services supplied in the exercise of governmental authority in a Party's territory. A service supplied in the exercise of governmental authority means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers.
6. Nothing in this Chapter shall prevent a Party from applying measures to regulate the entry of natural persons of the other Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to the other Party under the terms of this Chapter. (5)
7. This Chapter, except for the list of financial services specific commitments in the Schedules of Specific Commitments under this Agreement, does not apply to measures affecting the supply of financial services (6) as defined in subparagraph 5(a) of the GATS Annex on Financial Services. The obligations of each Party with respect to measures affecting the supply of financial services shall be in accordance with its obligations under GATS, the GATS Annex on Financial Services and the GATS Second Annex on Financial Services, and subject to any reservations thereto. The said obligations are hereby incorporated into this Agreement, and the schedule of financial services specific commitments of Annex 6 (Schedules of Specific Commitments) of this Agreement shall apply.
8. In addition to the provisions of this Chapter, the rights and obligations of the Parties in respect of telecommunication services shall also be governed by the provisions of:
(a) the GATS Annex on Telecommunications; and
(b) the GATS Reference Paper developed in the Negotiating Group on Basic Telecommunications attached to each Party's GATS schedules of commitments, which are hereby incorporated into this Chapter, mutatis mutandis, as if those provisions were fully set out herein.
Article 106. National Treatment
In the sectors inscribed in its Schedule, and subject to any conditions and qualifications set out therein, each Party shall accord to services and service suppliers of the other Party treatment no less favourable than that it accords, in like circumstances, to its own services and service suppliers.
Article 107. Market Access
1. With respect to market access through the modes of supply identified in the "trade in services" definition of Article 104 (Definitions), each Party shall accord to services and service suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule. (7)
2. In sectors where market access commitments are undertaken, the measures which a Party shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule, are defined as:
(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test; (8)
(d) limitations on the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test;
(e) measures which restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; or
(f) limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.
Article 108. Additional Commitments
The Parties may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Article 106 (National Treatment) or Article 107 (Market Access), including those regarding qualifications, standards or licensing matters. Such commitments shall be inscribed in a Party's Schedule.
Article 109. Schedule of Specific Commitments
1. Each Party shall set out in a schedule the specific commitments it undertakes under Article 106 (National Treatment), Article 107 (Market Access) and Article 108 (Additional Commitments). With respect to sectors where such commitments are undertaken, each Schedule shall specify:
(a) terms, limitations and conditions on market access;
(b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments referred to in Article 108 (Additional Commitments); and
(d) where appropriate, the time-frame for implementation of such commitments and the date of entry into force of such commitments.
2. Measures inconsistent with both Articles 106 (National Treatment) and 107 (Market Access) are inscribed in the column relating to Article 107 (Market Access). In this case, the inscription is considered to provide a condition or qualification to Article 106 (National Treatment) as well.
3. The Parties' Schedules of Specific Commitments are set out in Annex 6 (Schedules of Specific Commitments).
Article 110. Domestic Regulation
1. In sectors where specific commitments are undertaken, each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. Each Party shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier of the other Party, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Party shall ensure that the procedures in fact provide for an objective and impartial review.
3. Where a Party requires authorization for the supply of a service, the Party's competent authorities shall, within a reasonable period of time after the submission of an application considered complete under domestic laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the competent authorities of the Party shall provide, without undue delay, information concerning the status of the application.
4. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, each Party shall aim to ensure that such measures are:
(a) based on objective and transparent criteria, such as competence and the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the service; and
(c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.
5. If the results of the negotiations related to Article VI:4 of GATS (or the results of any similar negotiations undertaken in other multilateral fora in which the Parties participate) enter into effect, this Article shall be amended, as appropriate, after consultations between the Parties, to bring those results into effect under this Agreement. The Parties agree to coordinate on such negotiations, as appropriate.
Article 111. Recognition
1. For the purposes of the fulfillment, in whole or in part, of its standards or criteria for the authorization, licensing or certification of services suppliers, and subject to the requirements of paragraph 3, a Party may recognize the education or experience obtained, requirements met, or licences or certifications granted in the other Party or a non-Party. Such recognition, which may be achieved through harmonization or otherwise, may be based upon an agreement or arrangement with the other Party or a non-Party concerned or may be accorded autonomously.
2. A Party that is a party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, shall afford adequate opportunity for the other Party, if the other Party is interested, to negotiate its accession to such an agreement or arrangement or to negotiate comparable ones with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that education, experience, licences or certifications obtained or requirements met in that other Party's territory should be recognized.
3. A Party shall not accord recognition in a manner which would constitute a means of discrimination between countries in the application of its standards or criteria for the authorization, licensing or certification of services suppliers, or a disguised restriction on trade in services.
4. Each Party should encourage the relevant bodies in its respective territory to conduct future negotiations for developing mutually acceptable standards and criteria for licensing, temporary licensing and certification of professional services suppliers.
Article 112. Transfers and Payments
1. Each Party shall permit transfers and payments for current transactions relating to its specific commitments to be made freely and without delay into and out of its territory.
2. Each Party shall permit such transfers and payments relating to the supply of services to be made in a freely usable currency at the market rate of exchange prevailing on the date of transfer.
3. Notwithstanding paragraphs 1 and 2, a Party may prevent or delay a transfer or payment through the equitable, non-discriminatory and good faith application of its laws relating to:
(a) bankruptcy, insolvency or the protection of the rights of creditors;
(b) issuing, trading or dealing in securities, futures, options, or derivatives;
(c) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;
(d) criminal or penal offences; or
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings.
4. Nothing in this Chapter shall affect the rights and obligations of the members of the International Monetary Fund under the Articles of the Agreement of the International Monetary Fund, including the use of exchange actions which are in conformity with the Articles of the Agreement of the International Monetary Fund, provided that a Party shall not impose restrictions on any capital transactions inconsistently with its obligations under this Chapter regarding such transactions, except at the request of the International Monetary Fund.
Article 113. Denial of Benefits
1. A Party may deny the benefits of this Chapter to:
(a) service suppliers of the other Party where the service is being supplied by a juridical person that is owned or controlled by persons of a non-Party and the juridical person has no substantive business activities in the territory of the other Party; or
(b) service suppliers of the other Party where the service is being supplied by a juridical person that is owned or controlled by persons of the denying Party and the juridical person has no substantive business activities in the territory of the other Party.
2. Upon a written request of the other Party, the denying Party shall inform in writing and consult with the other Party on the specific case of denial as referred to in paragraph 1 of this Article.
Article 114. Transparency
Further to Chapter 13 (Transparency):
(a) each Party shall maintain or establish appropriate mechanisms for responding to inquiries from interested persons regarding its laws and regulations relating to the subject matter of this Chapter; (9)
(b) at the time it adopts final laws and regulations relating to the subject matter of this Chapter, each Party shall, to the extent possible, including upon request, take into consideration of substantive comments received from interested persons with respect to the proposed laws and regulations; and
(c) to the extent possible, each Party shall allow a reasonable period of time between publication of final laws and regulations and their effective date.
Article 115. Implementation and Review
The Parties shall consult annually, or as otherwise agreed, to review the implementation of this Chapter and consider other matters of mutual interest affecting trade in services. (10)
Chapter 9. Temporary Entry for Business Persons
Article 116. General Principles
Further to Article 117 (General Obligations), this Chapter reflects the preferential trading relationship between the Parties, the mutual objective to facilitate temporary entry for business persons on a reciprocal basis and in accordance with Annex 7 (Commitments for Temporary Entry for Business Persons), the need to establish transparent criteria and procedures for temporary entry and the need to ensure border security and to protect the domestic labor force and permanent employment in their respective territories.
Article 117. General Obligations
1. Each Party shall apply its measures relating to the provisions of this Chapter in accordance with Article 116 (General Principles) and, in particular, shall expeditiously apply those measures so as to avoid unduly impairing or delaying trade in goods or services or conduct of investment activities under this Agreement.
2. Nothing in this Chapter shall be construed to prevent a Party from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to unduly impair or delay trade in goods or services or conduct of investment activities under this Agreement.
Article 118. Grant of Temporary Entry
1. Each Party shall grant temporary entry to business persons who comply with existing immigration measures applicable to temporary entry such as those relating to public health and safety and national security, in accordance with this Chapter and the terms and conditions of Annex 7 (Commitments for Temporary Entry for Business Persons).
2. Each Party shall limit any fees for processing applications for temporary entry of business persons so as to not unduly impair or delay trade in goods or services or the conduct of investment activities under this Agreement.
Article 119. Provision of Information
1. Further to Article 167 (Transparency) of the Chapter 13 (Transparency), and recognizing the importance to the Parties of transparency of temporary entry information, each Party shall:
(a) provide to the other Party relevant materials that will enable it to become acquainted with its measures relating to this Chapter; and
(b) no later than 6 months after the date of entry into force of this Agreement, make available explanatory material regarding the requirements for temporary entry under this Chapter in such a manner that will enable business persons of the other Party to become acquainted with them.
2. Each Party shall collect and maintain, and, on request, make available to the other Party in accordance with its domestic law, data respecting the granting of temporary entry under this Chapter to business persons of the other Party who have been issued immigration documentation.
Article 120. Working Group
1. The Parties hereby establish a Working Group on Temporary Entry for Business Persons, which shall meet at least once every 3 years or on request of the Free Trade Commission to consider any matter arising under this Chapter.
2. The Working Group's functions shall include:
(a) to review the implementation and operation of this Chapter;
(b) to consider the development of measures to further facilitate temporary entry of business persons on a reciprocal basis;
(c) the identification of measures that affect the temporary entry of business persons under this Chapter; and
(d) the observance of the issues established under Article 121 (Cooperation).
Article 121. Cooperation
Taking into account the principles set out in Article 116 (General Principles), the Parties shall:
(a) share information and experiences on regulations and implementation of programs and technology in the framework of migratory issues, including those related to the use of biometric technology, advanced passenger information systems, frequent passenger programs and security in travel documents; and
(b) endeavor to coordinate actively in multilateral forums, in order to promote the facilitation of temporary entry of business persons.
Article 122. Dispute Settlement
1. A Party may not initiate proceedings under the general dispute settlement provisions of this Agreement regarding a refusal to grant temporary entry under this Chapter unless:
(a) the matter involves a pattern of practice; and
(b) the business person has exhausted the available administrative remedies regarding the particular matter.
2. The remedies referred to in subparagraph 1(b) shall be deemed to be exhausted if a final determination in the matter has not been issued by the competent authority within one year of the institution of an administrative proceeding, and the failure to issue a determination is not attributable to delay caused by the business person.
Article 123. Relation to other Chapters
1. No provision of this Agreement shall be interpreted to impose any obligation on a Party regarding its immigration measures, except as specifically identified in this Chapter, and Chapters 1 (Initial Provisions), Chapter 8 (Trade in Services), Chapter 13 (Transparency), Chapter 14 (Administration of the Agreement), Chapter 15 (Dispute Settlement), Chapter 16 (Exceptions) and Chapter 17 (Final Provisions).
2. Nothing in this Chapter shall be construed to impose obligations or commitments with respect to other Chapters of this Agreement.
Article 124. Transparency
1. Further to Chapter 13 (Transparency), each Party shall establish or maintain appropriate mechanisms to respond to inquiries from interested persons regarding laws and regulations relating to the temporary entry of business persons.
2. Each Party shall endeavor to, within a reasonable period that should not exceed 30 days after an application requesting temporary entry is considered complete under its domestic laws and regulations, inform the applicant of the decision concerning the application.
Article 125. Definitions
For purposes of this Chapter:
business person means a national of a Party who is engaged in trade in goods, trade in services or investment activities;
temporary entry means entry into the territory of a Party by a business person of the other Party without the intent to establish permanent residence; business visitor means a natural person of a Party who is:
(i) a service seller who is a sales representative of a service supplier of that Party and is seeking temporary entry to the other Party for the purpose of negotiating the sale of services for that service supplier, where such representative will not be engaged in making direct sales to the general public or in supplying services directly;
(ii) an investor of a Party or a duly authorized representative of an investor of a Party, who is seeking temporary entry into the territory of the other Party to establish, develop, administer, expand, monitor, or dispose an investment of that investor; or
(iii) a goods seller who is seeking temporary entry to the territory of the other Party to negotiate the sale of goods where such negotiations do not involve direct sales to the general public;
intra-corporate transferee means a manager, an executive, or a specialist, who is a senior employee of a service supplier of a Party with a commercial presence, as defined in Chapter 8 (Trade in Services), in the territory of the other Party;
executive means a natural person within an organization who primarily directs the management of the organization, exercises wide latitude in decision-making, and receives only general supervision or direction from higher level executives, the board of directors and/or stockholders of the business. An executive would not directly perform tasks related to the actual provision of the service nor the operation of an investment; immigration measure means any law, regulation or procedure affecting the entry and sojourn of foreign nationals;
manager means a natural person within an organization who primarily directs the organization or a department or sub-division of the organization, supervises and controls the work of other supervisory, professional or managerial employees, has the authority to hire and fire or take other personnel actions (such as promotion or leave authorization), and exercises discretionary authority over day-to-day operations; and
specialist means an employee within an organization who possesses knowledge at an advanced level of technical expertise, and who possesses proprietary knowledge of the organization's service, research equipment, techniques or management.
Chapter 10. Investment
Article 126. Definitions
For purposes of this Chapter:
investment means every kind of asset invested by investors of one Party in accordance with the laws and regulations of the other Party in the territory of the latter, and in particular, though not exclusively, includes:
(a) movable, immovable property and other property rights such as mortgages and pledges, and similar rights;
(b) shares, debentures, stock and any other kind of participation in companies;
(c) claims to money or to any other performance having an economic value associated with an investment (11);
(d) intellectual property rights, in particularly copyrights, patents, trade-marks, trade-names, know-how and technological process, as well as good-will;
(e) concessions conferred by law or under contract, including concessions to search for, cultivate, extract or exploit natural resources. investors means:
(a) for China:
(i) natural persons who have nationality of the People's Republic of China in accordance with its law;
(ii) economic entities established in accordance with the laws of the People's Republic of China and domiciled in the territory of the People´s Republic of China; or
(iii) legal entities not established under the law of the People's Republic of China but effectively controlled, by natural persons, as defined in subparagraph (a)(i) or by economic entities as defined in subparagraph (a)(ii), that have made an investment in the territory of the other Party; and
(b) for Peru:
(i) natural persons who, according to the law of the Republic of Peru, have its nationality; or
(ii) all juridical persons established in accordance with the laws of the Republic of Peru, including civil and commercial companies and other associations with or without a legally ackowledged existence that perform an economic activity included within the sphere of this Chapter and which are directly or indirectly controlled by nationals of the Republic of Peru, that have made an investment in the territory of the other Party; and returns means the amounts yielded by investments, such as profits, dividends, interests, capital gains, royalties, fees or other legitimate income.
Article 127. Scope and Coverage
1. This Chapter applies to measures adopted or maintained by a Party relating to:
(a) investors of the other Party; and
(b) investments of investors of the other Party.
2. This Chapter shall not apply to measures adopted or maintained by a Party affecting trade in services.
3. Notwithstanding paragraph 2, for the purpose of protection of investment with respect to the commercial presence mode of service supply, Article 132 (Fair and Equitable Treatment and Full Protection and Security), Article 133 (Expropriation), 134 (Compensation for Losses), Article 135 (Transfers), Article 136 (Subrogation) and Article 137 (Denial of Benefits) shall apply to any measure affecting the supply of a service by a service supplier of a Party through commercial presence in the territory of the other Party. Article 139 (Investor-State Dispute Settlement) shall apply to Article 132 (Fair and Equitable Treatment and Full Protection and Security), Article 133 (Expropriation), Article 134 (Compensation for Losses), Article 135 (Transfers), and Article 136 (Subrogation) with respect to the supply of a service through commercial presence.
4. For greater certainty, the provisions of this Chapter do not bind either Party in relation to any act or fact that took place or any situation that ceased to exist before the date of entry into force of this Agreement.
5. This Chapter shall not apply to laws, regulations, policies or procedures of general application governing the procurement by government agencies of goods and services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods or the supply of services for commercial sale.
6. Notwithstanding paragraph 5, Article 132 (Fair and Equitable Treatment and Full Protection and Security), Article 133 (Expropriation), Article 134 (Compensation for Losses), Article 135 (Transfers), Article 136 (Subrogation), Article 137 (Denial of Benefits) and Article 139 (Investor-State Dispute Settlement) shall apply to the laws, regulations, policies or procedures mentioned hereinbefore.
7. This Chapter shall apply to all investments made by investors of a Party in the territory of the other Party, whether made before or after the entry into force of this Agreement, but Article 139 (Investor-State Dispute Settlement) shall not apply to any dispute or any claim concerning an investment which was already under judicial or arbitral process before the entry into force of this Agreement.
Article 128. Promotion and Protection of Investment
1. Each Party shall encourage investors of the other Party to make investments in its territory and admit such investments in accordance with its laws and regulations.
2. Subject to its laws and regulations, each Party shall provide assistance in and facilities for obtaining visas and working permit to nationals of the other Party engaging in activities associated with investments made in the territory of that Party.
Article 129. National Treatment
1. Each Party shall accord to investors of the other Party treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the management, conduct, operation, and sale or other disposition of investments in its territory.
2. Each Party shall accord to investments of investors of the other Party treatment no less favourable than that it accords, in like circumstances, to investments in its territory of its own investors with respect to the management, conduct, operation, and sale or other disposition of investments.
3. Notwithstanding paragraphs 1 and 2, the Parties reserve the right to adopt or maintain any measure that accords differential treatment to socially or economically disadvantaged minorities and ethnic groups. (12)
Article 130. Non-conforming Measures
1. Article 129 (National Treatment) does not apply to:
(a) any existing non-conforming measures maintained within its territory;
(b) the continuation of any non-conforming measure referred to in subparagraph (a); or
(c) an amendment to any non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not increase the non-conformity of the measure, as it existed immediately before the amendment, with those obligations.
2. The Parties will endeavour to progressively remove the non-conforming measures.
Article 131. Most-favoured-nation Treatment
1. Each Party shall accord to investors of the other Party treatment no less favourable than that it accords, in like circumstances, to investors of any third State with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory.
2. Each Party shall accord to investments of investors of the other Party treatment no less favourable than that it accords, in like circumstances, to investments in its territory of investors of any third State with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments. (13)
3. Notwithstanding paragraphs 1 and 2, the Parties reserve the right to adopt or maintain any measure that accords differential treatment:
(a) to socially or economically disadvantaged minorities and ethnic groups (14); or
(b) involving cultural industries related to the production of books, magazines, periodical publications, or printed or electronic newspapers and music scores.
4. The treatment and protection as mentioned in paragraphs 1 to 2 of this Article shall not include any preferential treament accorded by the other Party to investments of investors of any third State based on free trade agreement, free trade zone, custom union, economic union, or agreement relating to avoidance of double taxation or for facilitating frontier trade.
Article 132. Fair and Equitable Treatment and Full Protection and Security
1. Each Party shall accord fair and equitable treatment and full protection and security in accordance with customary international law in its territory to investment of investors of the other Party.
2. For greater certainty,
(a) the concepts of "fair and equitable treatment" and "full protection and security" do not require additional treatment to that required under the minimum standard of treatment of aliens in accordance with the standard of customary international law;
(b) a determination that there has been a breach of another provision of this Agreement or another international agreement does not imply that the minimum standard of treatment of aliens has been breached;
(c) "fair and equitable treatment" includes the prohibition against denial of justice in criminal, civil, or administrative proceedings in accordance with the general accepted principles of customary international law; and
(d) the "full protection and security" standard does not imply, in any case, a better treatment to that accorded to nationals of the Party where the investment has been made.
Article 133. Expropriation
1. Neither Party shall expropriate or nationalize, either directly or indirectly through measures equivalent to expropriation or nationalization (hereinafter referred to as "expropriation") against investments of investors of the other Party in its territory, unless the following conditions are met:
(a) for the public interest; (15)
(b) under domestic legal procedure;
(c) without discrimination; and
(d) against compensation.
2. The compensation mentioned in subparagraph 1(d) of this Article shall be equivalent to the fair market value of the expropriated investments immediately before the expropriation took place ("the date of expropriation"), convertible and freely transferable. The compensation shall be paid without unreasonable delay.
Article 134. Compensation for Losses
Investors of one Party who suffer losses in respect of their investments in the territory of the other Party owing to war, a state of national emergency, insurrection, riot or other similar events, shall be accorded by the latter Party, as regards restitution, indemnification, compensation and other settlements, treatment no less favourable than that accorded to the investors of its own or any third State, whichever is more favourable to the investor concerned.
Article 135. Transfers
1. Each Party shall guarantee investors of the other Party the transfer of their investments and returns held in the territory of the former Party, including:
(a) profits, dividends, interests and other legitimate income;
(b) amounts from total or partial liquidation of investments;
(c) payments made pursuant to a loan agreement in connection with investment;
(d) royalties referred to in the "returns" definition of Article 126 (Definitions);
(e) payments of technical assistance or technical service fee, management fee;
(f) payments in connection with projects on contract associated with investment;
(g) earnings of nationals of a Party who work in connection with an investment in the territory of the other Party; and (h) the free transfer of compensation and other payments under Article 133 (Expropriation) and Article 134 (Compensation for Losses).
2. The transfers mentioned above shall be made in a freely usable currency at the prevailing market rate of exchange of the Party accepting the investments on the date of transfer.
3. Notwithstanding paragraphs 1 and 2, a Party may prevent a transfer through the equitable, non-discriminatory, and good faith application of its laws relating to:
(a) bankruptcy, insolvency, or the protection of the rights of creditors;
(b) issuing, trading, or dealing in securities, futures, options, or derivatives;
(c) criminal or penal offenses; or
(d) ensuring compliance with orders or judgments in judicial or administrative proceedings.
Article 136. Subrogation
If one Party or its designated agency makes a payment to its investors under a guarantee or a contract of insurance against non-commercial risks it has accorded in respect of an investment made in the territory of the other Party, the latter Party shall recognize:
(a) the assignment, whether under the law or pursuant to a legal transaction in the former Party, of any rights or claims by the investors to the former Party or to its designated agency;
(b) that the former Party or its designated agency is entitled by virtue of subrogation to exercise the rights and enforce the claims of that investor and assume the obligations related to the investment to the same extent as the investor.